Assault Police


The courts are particularly protective of police, as an often quoted Supreme Court judgment shows:

“Assaults against police officers acting in the course of their duty are rightly treated as serious offences. Police officers are necessarily exposed to the risk of physical injury and when that risk materialises they are entitled to the protection of the courts. Any interference with the discharge by police officers of their duties must be treated seriously.”

A court can impose any of the following penalties for assaulting a police officer in execution of duty:

The Offence Of Assault Police:

The ACT does not have a separate charge of assaulting police, but many Canberra region people find themselves charged with an offence in surrounding NSW.

If you are charged with assaulting a police officer in the ACT, the charge will be brought as a simple Common Assault under section 26 of the Crimes Act 1900, carrying a maximum penalty of two years’ prison, or perhaps as an Assault Occasioning Actual Bodily Harm under Section 24, carrying five years.

In NSW, the maximum penalty for assaulting, throwing a missile at, stalking, harassing or intimidating a police officer while in the execution of the officer’s duty, is five years’ imprisonment – even where no actual bodily harm is occasioned to the officer.

Depending on whether the incident caused actual harm, grievous harm and was caused recklessly or during a public disorder, the maximum penalties increase to seven, nine, 12 and 14 years’ imprisonment, depending on the individual circumstances.

In the ACT, however, the fact that the person assaulted is a police officer is seen only as an aggravating feature of any assault charge and is taken into account at sentence, but always under the lesser statutory penalties that apply in the ACT.

In NSW, Section 60 of the Crimes Act 1900 provides for a number of offences relating to police officers in the execution of their duty. The charge that will be laid will depend on two things: 1) whether the assault occurred as part of a public disorder; and 2) the injury, if any, that the officer sustained.

Subsection (1) of that Section states: “A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years.”

Subsection (1A) contains an aggravated offence relating to public disorder, which states: “A person who, during a public disorder, assaults, throws a missile at, stalks, harasses or intimidates a police officer while in execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years.”

Subsection (2) contains an aggravated offence, if the officer sustained actual bodily harm, which states: “A person who assaults a police officer while in execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years.”

Subsection (2A) contains an aggravated offence relating to public disorder, where the officer sustained actual bodily harm, which states: “A person who, during a public disorder, assaults a police officer while in execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years.”

Subsection (3) contains an aggravated offence, if the officer sustained a wound or an injury amounting to grievous bodily harm, which states: “A person who by any means: (a) wounds or causes grievous bodily harm to a police officer which in the execution of the officer’s duty; and (b) is reckless as to causing that actual bodily harm to that officer or any other person; is liable to imprisonment for 12 years.”

Subsection (3A) contains an aggravated offence relating to public disorder, where the officer sustained a wound or an injury amounting to grievous bodily harm, which states: “A person who by any means during a public disorder: (a) wounds or causes grievous bodily harm to a police officer which in the execution of the officer’s duty; and (b) is reckless as to causing that actual bodily harm to that officer or any other person; is liable to imprisonment for 14 years.”

What Actions Might Constitute Assaulting An Officer In Execution Of Their Duties?

Whilst the slightest touch may technically be an “assault” in the basic sense of the word, the Police will generally not charge a person unless there is a significant degree of force applied. For example, punching, kicking, pushing or spitting on a Police Officer would constitute an assault.

There are circumstances in which an offence can be made out even if the officer was not on duty at the time. These are:

  • If the assault occurred as a consequence of or in retaliation for actions taken whilst the officer was in execution of their duty;
  • If the assault occurred because that person is a police officer.

Examples of offences under this section include:

  • Kicking, punching or pushing a police officer to stop them arresting you or someone you know;
  • Threatening a police officer who is arresting you or interviewing you as part of an investigation; and
  • Seeking out, and threatening or assaulting, a police officer when they are off duty.

What The Police Must Prove:

To convict you of Common Assault in the ACT, the Prosecution must prove each of the following matters beyond a reasonable doubt:

  • You struck, touched or applied force to another, or threatened another with immediate violence;
  • You did so intentionally, or recklessly;
  • Without consent;
  • Without lawful excuse.

The fact that the other person was a police officer is not an element of the offence in the ACT, but will be, if proved beyond a reasonable doubt, taken as an aggravating feature at sentence.

To be convicted of Assault Occasioning Actual Bodily Harm in the ACT, the Prosecution must prove the same elements as for common assault with the extra element that the Assault caused Actual Bodily Harm, which is defined as a visible injury. For example, a bruise or a scratch would be sufficient in meeting those criteria.

There is also case law that defines the term “actual bodily harm”. This would include any injury that would interfere with another individual’s health or comfort. The case of R v Donovan [1934] 2 KB 498 at 509 states that the injury does not need to be permanent, but “must be more than merely transient or trifling.”

In NSW, to convict you of an offence of assaulting police under section 60(1) of the Crimes Act, the Police must prove beyond reasonable doubt that you:

  • Assaulted; threw a missile at; stalked; harassed or intimidated a person;
  • That person was a police officer; and
  • That officer was in the execution of their duty at the time of the assault.

To convict you of an offence under section 60(1A), the Police must also prove that the assault occurred during a public disorder.

To convict you of an offence under section 60(2), the Police must also prove that the action or assault caused actual bodily harm to the Police Officer.

To convict you of an offence under section 60(2A), the Police must also prove that the assault occurred during a public disorder and caused actual bodily harm to the Police Officer.

To convict you of an offence under section 60(3), the Police must also prove that the assault caused an injury that would amount to wounding or grievous bodily harm.

To convict you of an offence under section 60(3A), the Police must also prove that the assault occurred during a public disorder and caused an injury that would amount to wounding or grievous bodily harm.

Defences To Assault Police:

The common ways to enter a not guilty plea and defend a charge in NSW – or to remove the aggravating feature of a police officer being assaulted in the ACT – are:

  • To argue that you did not believe, and could not reasonably have been expected to have believed, that the person was a Police officer. At minimum, you would have to show that they were not in uniform and did not identify themselves as a police officer. The Court will have to decide if your belief that the person was not a police officer was both honest and reasonable, in the eyes of the ordinary citizen.
  • To argue that the Police Officer was not acting in the execution of their duty.
  • In both the ACT and NSW, it may also be possible to raise the defences of Necessity, Self-Defence or Duress as the reason for your conduct.

Which Court Will Hear Your Matter?

A common assault in the ACT, whether alleged against a police officer or anyone else, is a summary-only matter, meaning it will be heard and decided in the ACT Magistrates Court.

An ACT charge of Assault Occasioning Actual Bodily Harm, again whether alleged against a police officer of anyone else, is most likely to be heard in the Magistrates Court. This is because the Prosecution can elect to have the matter stay in that court, not giving the Defence a choice. However, If the Prosecution does not make such an election, it is still possible for the Defence to “consent to the jurisdiction” of the Magistrates Court or to instead insist on the matter being heard in the Supreme Court.

The major differences are that:

  • The Magistrates Court cannot impose a sentence of greater than two years’ prison whereas the Supreme Court can impose up to the maximum penalty of five years.
  • A Supreme Court trial would be held before a judge and jury of 12 citizens whereas a Magistrates Court hearing would be before a lone magistrate.

In NSW, offences under subsections (1) and (1A) of Section 60 of the Crimes Act are Table 2 Offences. That is, the matter will be dealt with in the Local Court unless the Prosecution elects to have the matter dealt with in the District Court.

Offences under subsections (2) and (2A) are Table 1 Offences. That is, the matter will be dealt with in the Local Court unless either the Prosecution or the Defence elect to have the matter dealt with in the District Court.

Offences under subsections (3) and (3A) are strictly indictable offences. That means, the matter must be finalised in the District or Supreme Court.

If the matter is dealt with in the District or Supreme Court, it will give rise to harsher penalties.

 

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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